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E-Racing Racial Profiling 905 E-RACING RACIAL PROFILING 905 E-RACING RACIAL PROFILING DAVID M. TANOVICH' Despite widespread denials, racial profiling is a Malgre le fail que ce soil generalement nie, serious problem in many Canadian jurisdictions. The I 'etablissement de profils raciaux represente un time has come to stop the debate and to focus instead serieux probleme dans de nombreuses Juridic/ions on remedial action that directly addresses the canadiennes. II est temps d 'arreter le de bat et de se problem. The author begins with an analysis of the pencher plut6t sur des mesures correctives abordant dynamics of racial profiling and notes the challenges directement le prob/eme. L 'auteur commence par une ii poses to institutional measures aimed at changing analyse de la dynamique de I 'etablissement de profi/s police culture, such as anti-racism training and hiring raciaux et indique /es difficu/tes que cela represente practices. Since the breeding ground for racial pour /es mesures institutionne/les qui visent achanger profiling is the day-to-day crime detection policing la culture de la police comme /es pratiques anti­ that occurs through vehicle and pedestrian stops. one racistes deformation et d'embauche. Comme le vivier significant step that can be taken is to compel the de I 'etablissement de profits raciaux est la detection police to record and publish stop data. This remedial de crimes au Jour le Jour que la police ejfectue au approach has been put into practice in England and moyen d'arrets de vehicules et de pietons, le/ail de in much of the U.S. The author further proposes a demander a la police d 'enregistrer et de publier /es revamping of the public complaints system. An donnees sur ces arrets pourrail s 'averer un pas objective and independent public complaints process important. Celle demarche corrective a ete mise en is lacking and formal measures must be taken in this pratique en Angleterre et dans une grande parlie des area to improve police accountability. The author Etats-Unis. L 'auteur suggere de reorganiser le also suggests that anti-racial profiling legislation is systeme de plain/es du public. JImanque un processus needed. Perhaps most importantly, law reform is objectif et independant de plaintes du public et ilfaut required. To this end, the author details several prendre des mesures ojficie/les dans ce domaine pour specific recommendations to stimulate law reform in ameliorer la responsabilite de la police. L 'auteur Canada. indique aussi qu 'une legislation interdisant I 'etablissement de profi/s raciaux s 'impose. II est peut-etre plus important de reformer la loi. Acettefin, I 'auteur donne /es details de plusieurs recommandations specifiques visant a stimu/er la reforme de la /oi au Canada. TABLE OF CONTENTS I. INTRODUCTION . 906 II. UNDERSTANDING THE DYNAMICS OF RACIAL PROFILING . 91 I III. CHANGING POLICE CULTURE .................................. 917 IV. DATA COLLECTION .......................................... 918 A. ENGLAND . 921 B. THE UNITED STATES .................................... 923 C. CANADA . 924 V. REVAMPING THE PUBLIC COMPLAINTS SYSTEM .................... 925 VI. ANTI-RACIAL PROFILING LEGISLATION ........................... 926 VII. STIMULATING LAW SUITS ..................................... 928 VIII. STIMULATING LAW REFORM ................................... 928 Assistant Professor, Faculty of Law, University of Windsor. An earlier version of this article was presentedto the Ontario Civilian Commissionon Police Services(9 June 2003) on behalf of the African Canadian CommunityCoalition, a coalition of more than 30 community groups in Toronto. 906 ALBERTA LAW REVIEW (2004) 41 :4 A. RECOMMENDATION #1: THE SUPREME COURT OF CANADA SHOULD OVERRULE R. V. LADOUCEUR ............. 928 B. RECOMMENDATION #2: COURTS MUST FACTOR IN THE RELEVANT SOCIAL CONTEXT OF RACIAL PROFILING WHEN DETERMINING THE CHARTER STANDARDS TO GUIDE POLICE POWERS OF STOP AND SEARCH . 929 C. RECOMMENDATION #3: THE CROWN SHOULD BEAR THE ONUS UNDER SECTION 9 OF ESTABLISHING ON A BALANCE OF PROBABILITIES THAT A VEHICLE STOP WAS NOT THE RESULT OF RACIAL PROFILING ............. 929 0. RECOMMENDATION #4: ALL STREET LEVEL CRIMINAL INVESTIGATIONS SHOULD BE DEEMED A DETENTION FOR SECTION 9 PURPOSES ................................ 932 IX. CONCLUSION 933 I. INTRODUCTION Largely as a result of the Toronto Star's expose on race and crime in October of 2002, the sensitive issue ofracial profiling of the African-Canadian community in Toronto is finally getting the attention that it requires. 1 The problem, however, is that most of that attention has been on whether or not the practice exists. After the Toronto Star report was published, the Toronto public heard almost nothing but constant and vehement denials by the police union, the police brass, and the mayor. 2 In addition, the police went on the offensive. Chief of Police Julian Fantino hired Professor Ed Harvey from the University of Toronto and well-known The initial lead articles in this series included: Jim Rankin et al., "Singled Out" Toronto Star (19 October 2002) A I; "Police target black drivers" Toronto Star (20 October 2002) A I; "Black arrest rates highest" Toronto Star (26 October 2002) A2; and "Life and death on mean streets" Toronto Star (27 October 2002) A2. The Toronto Star explained the purpose of the series as follows: "[a]t various times, concerns about relations between the pol ice and minorities, questions about arrests and charges, have been raised by the city's minority communities. We believe it is the duty of a newspaper and its journalists to seek out the truth, to focus attention on practices and issues that need to be discussed and addressed .... Our stories detail troubling facts surrounding minorities and police, and indicate it is time for the issue to be dealt with calmly and rationally"( Mary Deanne Shears, "Our Duty: Examine all issues" Toronto Star (19 October 2002) A2). In addition to relying on previous studies on systemic racism and policing, the Star conducted its own analysis based on data obtained from the police database known as CIPS - the Criminal Information Processing System. The data covered the period from 1996 to 2002 and involved more than 480,000 arrest'ticketing incidents and nearly 800,000 criminal and other charges (see "The story behind the numbers" Toronto Star (19 October 2002) Af 2). The Toronto Police Association: "[n]o racial profiling has ever been conducted by the Toronto Police Services" (Catherine Porter, "Police union urges Star boycott" Toronto Star (22 October 2002) A6); Chief Julian Fantino: "we do not do racial profiling" ("Fantino: 'We do not do racial profiling"' Toronto Star (19 October, 2002) A2); and Colin Perkel, "Ontario Chiefs back Fantino's profiling denial" Toronto Star (29 October 2002), online: Toronto Star <www.thestar.com>); Police Services Board Chair Norman Gardner: 'Toronto police profile by crime, not by race" (Philip Mascoll, "No racial profiling by police: Gardner" Toronto Star (18 November 2002) 84); Mayor Mel Lastman: "police only arrest the 'bad guys'. I don't believe that Toronto police engage in racial profiling in any way, shape or form" ("Analysis raises board hackles" Toronto Star (20 October 2002) A9). E-RACING RACIAL PROFILING 907 defence lawyer Alan D. Gold to review the Toronto Star's interpretation of the police data. 3 Then, in a well-orchestrated manoeuver, Harvey and Gold attended a Toronto Police Services Board meeting that had been advertised as an opportunity for the Black community to express their profiling concerns, and proclaimed that the newspaper's conclusions were "bogus" and based on "junk science." 4 In addition, the Toronto Police Service Association launched an unprecedented 2. 7 billion dollar lawsuit against the Toronto Star. The basis for the lawsuit was, as police union lawyer Tim Danson put it, "[a]ccusing the members of the Toronto Police Service ofracism." 5 Denial has not been the exclusive province of the Toronto police. When Ottawa Deputy Chief Larry Hill admitted at a conference on multiculturalism and policing that racial profiling exists within the Ottawa force, the president of the Ottawa Police Association Sergeant Byron Smith stated, "[ w ]e assert that we don't take part in racial profiling" and "so we kind of distanced ourselves from what (Hill) had to say about it."6 Similarly, the president of the Ontario Association of Chiefs of Police has stated that "it's certainly not something that we're that concerned about because we don't believe that it exists" and "it's our position that (racial profiling) does not exist. We're not doing that." 7 Unfortunately, the targeting of racial minorities for criminal or security-related investigation, solely or in part on the basis of their skin colour, is a real and serious problem in many jurisdictions. In England, for example, the Home Secretary reported in its 2003 annual report on race relations that "the 200 l /02 figures showed that black people were eight times more likely to be stopped and searched than white people. This was a rise from five Edward B. Harvey, "An Independent Review of the Toronto Star Analysis of Criminal Information Processing System (CIPS) Data Provided by the Toronto Police Services," online: Toronto Police Service <www.torontopolice.on.ca/publications/files/reports/harveyreport.pdf>. The integrity of Harvey's review is challenged by Scot Wortley & Julian Tanner, "Data, Denials and Confusion: The Racial Profiling Debate in Toronto" (2003)45 Can. J. Crim. 367. See also Harold Levy, "Police rebuttal called flawed" Toronto Star (10 June 2003) Al. Paul Moloney, "Police attack Star's race articles: Police chiefs race response gets crowd's full attention - Lawyer calls articles 'junk science"' Toronto Star (21 February 2003) A I; "Text from Toronto Police Service website" Toronto Star (21 February 2003) A I; and Catherine Porter, "Act, don't fight, police told" Toronto Star (21 February 2003) BI. See also Alan D. Gold, "Media Hype, Racial Profiling and Good Science" (2003) 45 Can.
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